April Litigation Updates

Read case summaries of select BIA, Circuit Court of Appeals, and Supreme Court cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of F-C-S-, 28 I&N Dec. 788 (BIA 2024) - Originally decided Mar. 14, 2024. Decided as amended, Apr. 3, 2024. Decided as amended, Apr. 16, 2024.

Holding:

  • "The regulation at 8 C.F.R. § 1240.17 (2024) applies only to those respondents first placed in expedited removal proceedings whose applications for relief and protection were adjudicated by United States Citizenship and Immigration Services and who were then placed in removal proceedings under section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a (2018)."

Note: This case was originally decided March 14, 2024. On its own motion, the Board of Immigration Appeals (BIA) amended the order on April 3, 2024 to clarify issues regarding the procedural context of the decision. The BIA then amended the order on April 16, 2024 in response to the Department of Homeland Security's (DHS) motion to clarify issues regarding the procedural context of the decision.

Fifth Circuit Court of Appeals

Bustamante-Leiva v. Garland, No. 22-60479 (5th Cir. Apr. 19, 2024) - Apr. 19, 2024

Facts & Background
  • Mrs. Bustamante-Leiva and Jean Carlos Jovel-Bustamante, Jayco David Jovel-Bustamante, and Jonathan Josue Jovel-Bustamante ("Petitioners" collectively), a mother and three children and citizens of Honduras, petitioned the Fifth Circuit for review of the BIA's denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
  • Mrs. Bustamante-Leiva applied for relief with the immigration court and had her children listed as riders on her application. Petitioners based their claims of persecution on account of religion, political opinion, and membership in the following five proposed particular social groups (PSGs):
    • (1) “unprotected Honduran [w]omen who are viewed as property and subordinate to the male dominated gangs”;
    • (2) “unprotected Honduran [w]omen who are unable to protect themselves or [ t ]heir children from Honduran gangs”;
    • (3) “Honduran [w]omen, who are involved in religious activities and a church that strives to proselytize and convert teenagers from joining gangs, and who are unable to protect themselves or their children from Honduran gangs”;
    • (4) “a [f]amily that is headed by an unprotected Honduran [w]oman who is unable to protect herself and her family, including children, from the Honduran [g]angs itself and the children from Honduran gangs”; and
    • (5) “Honduran witnesses to witness Honduran gang violence and threats.”
  • Petitioners' claim was based on the family's experience with gangs in Honduras, starting in 2012.
    • The gangs used a lot adjacent to the family's home to torture, kill, and bury gang victims. The family did not feel safe in their home, and they could hear and smell the gang's acts. Yet, the family did not have the money to leave. So, Mrs. Bustamante-Leiva's husband went to the United States to earn money, with the hope that his earnings could help the family leave the neighborhood.
    • After he left, Mrs. Bustamante-Leiva heard that the gang was recruiting children to join the gang, so she took her children and fled to a nearby city. One of the children, Jorge, left to the United States, seeking to reunify with his father but was unfortunately killed on the way. After his death, the mother found out that the reason Jorge tried to go to the United States was because the gang was trying to recruit him.
    • Mrs. Bustamante-Leiva and her remaining children lived in this nearby city without gang interactions until April 2015, at which time a gang member began extorting the family and making threats to the family, including killing the children. In response to the threats, Mrs. Bustamante-Leiva sought help from her pastor, and the pastor came to the family's home to pray with the family. The gang called the house while the family was praying, and the gang heard the family praying. The family continued to receive threats via text message from the gang, and the pastor told Mrs. Bustamante-Leiva to flee. So, Mrs. Bustamante-Leiva and her children then went to a relative's house in another city, until the family member feared for their own safety and asked them to leave. A different relative helped the family travel to Mexico. After the family came to the United States, Mrs. Bustamante-Leiva found out that the gang murdered the relative who helped the family flee, in retaliation for him helping them leave Honduras.
  • To support the application for relief, Mrs. Bustamante-Leiva testified and submitted a written declaration. One of the children and two expert witnesses testified as well. One expert witness testified as to Mrs. Bustamante-Leiva's mental health diagnoses resulting from the trauma that the family experienced, and the other expert witness testified about gangs in Honduras.
  • The immigration judge (IJ) denied all relief, ordering that the family be removed to Honduras. The BIA upheld the IJ's findings that the family did not show harm rising to the level of persecution, did not show a nexus between the harm and the protected ground, and did not establish a cognizable PSG. Specifically, regarding the PSGs, for the first four PSGs, the BIA found that Petitioners did not establish the requisite social distinction. For the fifth PSG, the BIA said that it was not cognizable because it lacked the requisite particularity.
Notable Holdings & Rationale 
  • The Fifth Circuit denied the petitions for review.
  • Notably, the Fifth Circuit held that the BIA did not err in determining that Petitioners failed to demonstrate membership in a cognizable PSG.
    • On appeal, Petitioners only raised two of the five PSGs: (1) “unprotected Honduran [w]omen who are unable to protect themselves or [ t ]heir children from Honduran gangs” and (2) “a [f]amily that is headed by an unprotected Honduran [w]oman who is unable to protect herself and her family, including children, from the Honduran [g]angs itself and the children from Honduran gangs.”
    • The Fifth Circuit stated that Fifth Circuit precedent supports the BIA's finding that these two proposed PSGs are not cognizable because they lack the requisite independent social distinction. The Fifth Circuit also held that Petitioners' own expert witnesses supported this finding, with the Fifth Circuit pointing out that one of the experts alluded to these social groups not being perceived in Honduran society as distinct from the rest of the community.
  • The Fifth Circuit held that the BIA did not err when it determined that Petitioners failed to establish past persecution or a well-founded fear of persecution due to religion. In the holding, the Fifth Circuit explained that the evidence does not demonstrate that religion was a central reason for the gang’s persecution of the family. Instead, the Fifth Circuit described that if religion played any part in the gang's persecution of Petitioners, religion was at most incidental to the gang’s goal of economic extortion.
  • Additionally, Petitioners raised the due process argument that the BIA violated their due process rights in allowing a single member of the BIA to make a decision, which the Fifth Circuit rejected and said that it does not violate due process.
  • Finally, though Petitioners argued that the BIA violated its obligation to be impartial when the BIA did not require DHS to file briefing, but the Fifth Circuit said that this argument has no supporting authority and is legally insufficient to prove bias.

Seventh Circuit Court of Appeals

Ndlovu v. Garland, No. 23-2208, 2024 WL 1786288 (7th Cir. Apr. 25, 2024)

Facts & Background
  • Mr. Ndlovu, a South African citizen, applied for cancellation of removal under 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1) after being overstaying his visa and being charged with removability under 8 U.S.C. U.S.C. § 1227(a)(1)(B). The IJ found that he met the elements for cancellation of removal exercised their discretionary powers to deny relief based on Mr. Ndlovu’s prior criminal convictions, including for drunk driving and battery. The BIA affirmed.
Notable Holdings & Rationale 
  • On appeal, Mr. Ndlovu argued that the IJ erred by considering the prior convictions because they occurred more than 10 years before the charge of removability. The Seventh Circuit rejected the argument and dismissed the appeal for lack of jurisdiction. It reasoned that there is no “time limit on what conduct the IJ or BIA could consider in making their discretionary determinations under § 1229a(c)(4)(A).”

Tenth Circuit Court of Appeals

Rangel-Fuentes v. Garland, No. 23-9511, 2024 WL 1726000 (10th Cir. Apr. 23, 2024)

Facts & Background
  • Ms. Rangel-Fuentes, a Mexican citizen who lived in the United States since the mid-1990s and had three U.S. citizen children, was denied asylum and cancellation of removal. For the asylum claim, the IJ considered the evidence presented and concluded that she failed to establish a nexus between her particular social group (PSG) (“women who had been repatriated to Mexico from the United States”) and the alleged persecution. The BIA affirmed on appeal and refused to address the merits of her asylum claim because it concluded that she had failed to preserve the issue of nexus for appeal.
Notable Holdings & Rationale 
  • This Tenth Circuit decision discusses the elements of cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D) and when an asylum claim has been waived on appeal.
  • The Tenth Circuit disagreed with the BIA's refusal to address the merits of the asylum claim. It remanded the asylum claim for further proceedings, reasoning that remand was not future and that “[w]hile the BIA is not obligated to develop arguments for litigants, it may also not turn a blind eye to the arguments plainly before it.” The dissenting justice on the panel disagreed with this portion of the opinion and would have affirmed the BIA’s decision.
  • The cancellation of removal claim turned on the age of Ms. Rangel Fuentes’s youngest child. A qualifying child for the purposes of establishing eligibility for cancellation of removal must be unmarried and under 21 years old. 8 U.S.C. § 1101(b)(1). Here, her youngest child was under 21 when the IJ closed the evidentiary record in September 2017. However, the IJ waited two years to issue a written opinion in September 2019 and by that time the child was over 21 years old. The IJ had waited to issue an opinion because of the statutory cap on the number of cancellations of removal that the Attorney General may grant a year and the regulations instructing IJs to reserve cancellation rulings until the cap has been reached. The BIA interpreted § 1229b(b)(1)(D) to mean that the child had to be under 21 at the time of the opinion, not when the evidentiary record closed. Ms. Rangel-Fuentes argued that the BIA’s interpretation conflicted with Tenth Circuit precedent and that the Tenth Circuit was not bound to follow their approach. The Tenth Circuit held that the issue ultimately turned on the deference owed BIA interpretations under the Chevron the BIA’s interpretation of § 1229b(b)(1)(D) was reasonable and entitled to deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Thus, it affirmed the denial of her cancellation of removal claim.